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Protocol | Workplace

Amazon wants to legalize pot, but it’s defending drug tests in court

The company said it would limit marijuana testing, but a New York lawsuit shows why it could be dealing with the issue for years to come.

Amazon wants to legalize pot, but it’s defending drug tests in court

For a giant logistics company, states' differing approaches to marijuana and safety can be tricky. | Image: Patrick Feller/Flickr

Romelo Rivera headed to an Amazon warehouse on New York City's Staten Island in March, thinking it was his first day back at work.

Two months earlier, according to a lawsuit he later joined, Rivera had wrapped up a seasonal stint at the facility, where his duties were described mostly as moving and inspecting packages. To return to the job permanently and start earning nearly $18 an hour, he hadn't even needed a formal interview — just a drug screening he'd completed before getting an email telling him when his possible start date would be.

Instead, soon after Rivera arrived, the company told him he'd tested positive for marijuana and wouldn't get the job, according to the complaint, filed earlier this year in federal court in New York.

Rivera is now one of three plaintiffs alleging that Amazon engaged in widespread violations of a New York City law that bans pre-employment marijuana testing (except when workers have certain safety responsibilities such as driving). Amazon announced earlier in June that it would support federal marijuana legalization and end a wide array of pre-employment marijuana testing outside of regulated transportation jobs. Yet it has continued defending the lawsuit, citing concerns about "immediate risk of death or serious physical harm" in the job from proximity to conveyor belts, heavy machinery and other workers.

"It is hard to reconcile the two," Doug Lipsky, Rivera's lawyer, told Protocol. "Amazon is arguing to the court that these positions are so potentially dangerous, the sorting facility is so perilous, that we can't run the risk of someone who tested positive for marijuana coming to work there."

To many, the case highlights a question that will only become more urgent for Amazon as additional states, or even the U.S. as a whole, move toward ending marijuana prohibition: How can a company with 1.3 million workers, flying and driving and seeking security clearances, handle divergent policies on marijuana?

'Really messy'

Indeed, experts say questions of labor and safety could remain unresolved years after any potential federal legalization. Despite Amazon's apparent relaxing stance on the issue, those questions could still require years of lobbying and tough calls by the company, and those decisions would come even as Amazon faces brutal labor turnover rates and workers, like those in New York, demand a consistent approach.

"When you have a day upon which [nationwide] legalization happens, there's so much to be figured out after that," said Paul Seaborn, a professor at the University of Virginia's business school who has studied lobbying and cannabis businesses. "The reality we're in right now is really messy for national companies."

Indeed, the details of marijuana policy can be head-spinning. Nearly 20 states (and the District of Columbia) allow adult recreational or medicinal use of cannabis, for instance, while a handful still prohibit any access. Thanks to varying definitions of "impairment," the legal status of someone driving a passenger car after the effects of consuming cannabis have worn off also differs among states. If someone is driving a truck full of Amazon packages, they are subject to federal testing requirements that haven't bent to any state legalization. Those dynamics could shift yet again if a potential U.S. law removed marijuana from the list of banned substances, but still, complications would likely persist in safety regulations slowly developed in the years after.

In other words: Even after its commitments to eliminate most drug testing as a condition of employment, Amazon is facing immense long-term complications for how it treats cannabis use by a workforce that moves and stores goods by air, sea, road and rail across the U.S.

Many of the workers who transport and deliver Amazon goods are either independent contractors or employees of a theoretically independent third party, but Amazon has an obvious interest in their safety records and employability, as well as its own liability. Meanwhile federal marijuana legalization continues to gain momentum but faces hurdles, particularly in the Senate and the White House.

Amazon didn't respond to questions asking how many potential employees it will be testing and whether it will continue testing beyond jobs regulated by the U.S. Transportation Department.

No one wants unsafe workers on the road, and the federal government mandates that companies simply limit their hiring of truck drivers to those who don't test positive for cannabis. However, some experts who study marijuana legalization say not only would that be unfair, but also it wouldn't particularly advance safety in a meaningful way.

One big reason is that, unlike with breathalyzer testing for alcohol, pre-employment testing or random testing for marijuana can pick up consumption from several days prior, when it is no longer impairing a worker. That's particularly true with the urinalysis that many regulators and safety officers favor. Even in a state where marijuana use is legal, requiring that workers test negative for all substances on a Monday could mean penalizing an employee who smoked a little on Friday while clearing for duty another employee who binge drank alcohol all day Sunday.

"With the urine test, you can't say anything" about impairment from marijuana, said Marta Concheiro-Guisan, an assistant professor in toxicology at John Jay College of Criminal Justice in New York. "If I have to go to court and say something about that, I say, 'You cannot say anything.'"

Another reason cannabis policy for logistics workers can be tricky is that, like the larger impacts of policing marijuana, the result of testing on a workforce can fall disproportionately on people of color. Amazon's own diversity report says that Black and Latinx workers are overrepresented at the employment level that roughly coincides with the fulfillment centers where Amazon says it has a safety interest in worker consumption. They're also underrepresented in management and senior roles where potential cannabis use goes essentially unexamined.

"When you rely on enforcement mechanisms that don't capture everyone universally in the same way, the far likelihood is the people it captures are low-income and minority communities," Andrew Freedman, who served as Colorado's cannabis czar when it was first implementing legalization, told Protocol. (Freedman is currently the executive director of Coalition for Cannabis Policy, Education, and Regulation.)

The one conspicuous exception for white-collar workers may be in certain divisions of Amazon Web Services, which currently provides cloud services to the CIA and is poised to expand to additional sensitive federal contracts in the future. Employees who require security clearances for those roles have a higher likelihood of facing consequences for cannabis use than their peers without clearances.

Finally, a blanket prohibition on cannabis users could really narrow the talent pool Amazon can draw from: More than one in seven people age 26 or over had used marijuana in the prior year, according to the most recent National Survey on Drug Use and Health, which used data from 2019. More than a third of those ages 18 to 25 had consumed cannabis in that period, the survey showed, and rates in both age groups have been rising. That's a particular challenge for Amazon, which has a 150% annual turnover rate among hourly employees and constantly needs to be drawing new candidates.

"Especially in a tight labor market, it is absolutely absurd for the private sector or the public sector to deny employment opportunities to qualified individuals because of what they choose to do in their free time," said Justin Strekal, political director of NORML, which advocates for marijuana legalization.

Beyond legalization

The realities of imperfect testing and the need for safety when piloting a multi-ton metallic vehicle may mean that testing continues to exclude people who have consumed cannabis in recent days until we understand more about detecting impairment. Advocates, however, hope regulations will take nuances into account if marijuana is legalized on the federal level, as drivers and the companies that employ them will be in limbo until final rules are decided.

"When you're an international logistics company and one of the largest employers in the world, having inconsistent policies across state lines and across your corporation with something that a good percentage of your workforce does is untenable," said Freedman.

If the experience of states that have ended marijuana prohibitions is any guide, the rule-making that follows legalization takes years and is rarely over after a first round. In addition to regulating truck drivers' potential impairment, for instance, federal laws and regulations govern labeling, advertising, purity, agriculture, manufacture, banking, taxation and more.

Whatever Amazon decides, though, there's little doubt it's on a long regulatory road.

Legalization "starts a very complex, years-long process of building initial regulations, finalizing those regulations and then along the way, putting new regulations into place requiring new legislation," said John Hudak, deputy director of the Center for Effective Public Management at the Brookings Institution, who has written extensively on marijuana policy.

"At the federal level, that process is just on steroids," he added.

Correction: An earlier version of this story did not fully name the Center for Effective Public Management. This story was updated on June 24, 2021.

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